IA168792015

The appellant has been given permission to appeal the decision of First-tier Tribunal Judge Devittie in which he dismissed the appellant's appeal against the respondent's decision of 17 April 2015 to refuse to issue him a residence card as the spouse of an EEA national exercising treaty rights in the UK.

In April 2014 the respondent granted him three months' leave to remain valid until 29 July 2014. He met his wife for the first time in November 2012 and throughout their relationship he was not attending any college. They began to cohabit in October 2013. They attempted to marry on 25 June 2014 but on the day, an official from the Home Office took them away for questioning. They were able to marry at the Islington registry on 16 July 2014. On 28 July 2014 before the expiry of his leave to remain, he made he made the application that forms the subject of this appeal.

Mr Tufan submitted that it was immaterial that the appellant made his application at a time when he had leave to remain. This is because an application for a residence card under the EEA Regulations can be made at any time without the applicant being here lawfully at the time of the application.

The main issue on which the appellant was granted permission to appeal the judge's decision was that the judge arguably failed to set out in fuller detail the question of the switching of the burden of proof. Mr Tufan relied on the Court of Appeal's decision in Rosa v SSHD [2016] EWCA Civ 14 where it was held at paragraph 27 as follows:

"... When translated into the position before the tribunal, that is tantamount to saying that the legal burden of proof in relation to marriage of convenience lies on the Secretary of State but that if the Secretary of State adduces evidence capable of pointing to the conclusion that the marriage is one of convenience, the evidential burden shifts to the applicant ."